DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Claims
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-16
Withdrawn claims: 8-16
Previously canceled claims: None
Newly canceled claims: None
Amended claims: None
New claims: None
Claims currently under consideration: 1-7
Currently rejected claims: 1-7
Allowed claims: None
Election/Restrictions
Applicant’s election with traverse of Group I, claims 1-7 in the reply filed on 14 August 2026 is acknowledged. The traversal is on the ground(s) that no adequate reasons and/or examples have been provided to support a conclusion of patentable distinctness between any of Groups I-III (p. 2, ¶ 2).
Regarding the patentable distinctness of Groups I and II and Groups II and III, Applicant argued that there is nothing in the record to support the assertions of patentable distinctness provided in the Restriction Requirement (p. 2, ¶ 3 – p. 3, ¶ 1)
This is not found persuasive because, as indicated by MPEP § 803(II), “Examiners must provide reasons and/or examples to support conclusions, but need not cite documents to support the restriction requirement in most cases.” The reasons and examples provided are sufficient to demonstrate patentable distinction between Groups I and II and Groups II and III.
Regarding the patentable distinctness of Groups I and III, Applicant argued that the method of Group I could be used to prepare the fluid gel used in the method of Group III, and therefore the inventions of Groups I and III are capable of use together and are not mutually exclusive (p. 3, ¶ 2).
This is not found persuasive because stating that Groups I and III can be used together does not negate the fact that the two methods have materially different designs and effects; the method of Group I yields a fluid gel, and the method of Group III yields a food product having fluid gel mixed in, but it is not a fluid gel. Furthermore, the method of Group I cannot be used to prepare the fluid gel for Group III because Group I does not necessarily yield a fluid gel having the properties of claim 8 as required by claim 14 of Group III. Thus, Groups I and III are mutually exclusive. Applicant’s assertion that Groups I and III can be used together does not demonstrate they are not mutually exclusive.
The requirement is still deemed proper and is therefore made FINAL.
Claims 8-16 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 14 August 2026.
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claim 4 is rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 4 recites the limitation “wherein the transglutaminase is used in an amount of…”. The claim is indefinite because it is unclear how the transglutaminase is “used”. For purposes of examination, this limitation is construed as, “wherein the transglutaminase is present in the solution in an amount of…”.
Claim Rejections - 35 USC § 102
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-3 and 6 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Wang et al. (CN 112890165 A, cited on the IDS filed 29 November 2024, see translation provided).
Regarding claim 1, Wang teaches a method for producing a fluid gel, comprising stirring a solution comprising a protein and transglutaminase – In Example 1, Wang teaches a method comprising, “Step 1), the plant protein isolate solution was stirred at room temperature for 2 hours and hydrated overnight. Then perform thermal cross-linking at 85°C, enzyme cross-linking at 45°C, high-speed shearing [i.e., stirring] at 8000 rpm for 2 minutes, and finally high-pressure homogenization at 750 bar to obtain protein microgels;” ([0058]). The enzyme used in enzyme cross-linking is transglutaminase ([0056]). The method further comprises Step 2): Adjust the pH of the protein microgel to 3.5, then mix with additives and stir, then mix with edible oil, and perform high-speed shearing at 8000 rpm for 5 minutes to obtain vegetarian salad dressing.” ([0059]). According to page 8, lines 11-14 of the instant specification, “In the present specification, the “fluid gel” is also called “liquid gel”, “fluid-state gel”, “fluid gel” and the like, and refers to an aggregate in which microgels are dispersed.” Thus, the method of Wang produces a fluid gel.
Claim 1 is therefore anticipated.
Regarding claim 2, Wang teaches that a temperature during the stirring is a temperature at which the protein does not denature – Stirring is done after enzyme cross-linking at 45°C ([0058]). Such temperature does not cause protein denaturation because the enzyme is active at this temperature.
Claim 2 is therefore anticipated.
Regarding claim 3, Wang teaches that a stirring speed during the stirring is 100 rpm to 30,000 rpm – high-speed shearing (i.e., stirring) is at 8000 rpm, which lies inside the claimed range of 100 rpm to 30,000 rpm.
Claim 3 is therefore anticipated.
Regarding claim 6, Wang teaches that the protein is a plant protein – In Example 1, the protein is pea protein ([0049]).
Claim 6 is therefore anticipated.
Claims 1, 4, and 7 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bönisch et al. (Bönisch, M. P., Huss, M., Weitl, K., & Kulozik, U. (2007). Transglutaminase cross-linking of milk proteins and impact on yoghurt gel properties. International Dairy Journal, 17(11), 1360-1371., cited on the IDS filed 9 June 2026) as evidenced by Gilbert et al. (Gilbert, A., Rioux, L. E., St-Gelais, D., & Turgeon, S. L. (2020). Studying stirred yogurt microstructure using optical microscopy: How smoothing temperature and storage time affect microgel size related to syneresis. Journal of Dairy Science, 103(3), 2139-2152. https://doi.org/10.3168/jds.2019-16787).
Regarding claim 1, Bönisch discloses a method for producing a fluid gel, comprising stirring a solution comprising a protein and transglutaminase – Bönisch teaches a method for producing stirred skim milk yoghurt (a fluid gel composition) comprising adding transglutaminase to a fortified skim milk and homogenization, which is equivalent to any type of “stirring” as required by claim 1 (p. 1362, Fig. 1). As evidenced by Gilbert, stirred yogurt is an aggregate composition of microgels (p. 2140, col. 1, ¶ 1). According to page 8, lines 11-14 of the instant specification, “In the present specification, the “fluid gel” is also called “liquid gel”, “fluid-state gel”, “fluid gel” and the like, and refers to an aggregate in which microgels are dispersed.” Thus, the method of Bönisch produces a fluid gel.
Claim 1 is therefore anticipated.
Regarding claim 4, Bönisch teaches that the transglutaminase is present in the solution in an amount of 0.001 U to 1,000 U per 1 g of the protein – “The yoghurt milk was tempered to 42 °C in a water bath and, subsequently, TG or TG+GSH were added at enzyme concentrations of 0.0, 0.6, 1.0, 1.5, 2.0 or 3.0 U g−1 protein” (p. 1362, § 2.3.2). “TG” is transglutaminase (Abstract). The disclosed amounts of 0.6, 1.0, 1.5, 2.0 or 3.0 U per 1 g protein lie inside the claimed range.
Claim 4 is therefore anticipated.
Regarding claim 7, Bönisch teaches that the protein is an animal protein – Skim milk protein and sweet whey protein (p. 1362, § 2.3.1 and Fig. 1) are animal proteins.
Claim 7 is therefore anticipated.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim 5 is rejected under 35 U.S.C. 103 as being unpatentable over Wang et al. (CN 112890165 A, cited on the IDS filed 29 November 2024, see translation provided).
Regarding claim 5, Wang teaches the method for producing a fluid gel according to claim 1 as described above.
Wang does not discuss that the transglutaminase is added to the solution comprising the protein while stirring.
However, as provided in MPEP § 2144.04(IV)(C), In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results) and In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.) support that changes in the sequence of adding ingredients is prima facie obvious.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to stir the protein solution when adding the transglutaminase enzyme at least to ensure adequate mixing of the enzyme and the protein solution for the cross-linking reaction. Additionally, it is common practice to combine ingredients while stirring.
Absent a showing of new or unexpected results from adding the transglutaminase to the solution comprising the protein while stirring, claim 5 is rendered obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to James Shellhammer whose telephone number is (703) 756-5525. The examiner can normally be reached Monday - Thursday 7:30 am - 5:00 pm ET.
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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